Moran v Weir No. DCCIV-02-1576

MORAN v WEIR
[2003] SADC 24
Judge Lowrie
Minor Civil Review

On 23 July 2001 the plaintiff, Bruce Weir, trading as Weirs, Barristers and Solicitors, issued an action in the Magistrates Court against the defendant, claiming the sum of $3,193.30 and particularised his claim as:
“The Plaintiff’s claim against the Defendant is for the sum of THREE THOUSAND, ONE HUNDRED AND NINETY-THREE DOLLARS AND THIRTY CENTS ($3193.30) for legal works performed by the Plaintiff for the Defendant full particulars whereof the Defendant has had.
AND THE Plaintiff claims the sum of THREE THOUSAND, FOUR HUNDRED AND SEVENTY-ONE DOLLARS AND THIRTY CENTS ($3471.30).
On 10 August 2001, the defendant filed his defence in the following terms:
“I had approached Bruce Weir to produce contract for purchase and was most upset to receive a large bill for work done so far when I hadn’t even worked out the heads of agreement with the seller. I then tried to confront him several occasions. Finally I agreed to pay $1000 no more. Since his incompetence I have suffered loss and have been unable to pay so far.”
On 29 August 2001, there was no appearance of the defendant and judgment was entered by default for the plaintiff in the sum as claimed together with “interest”.
On 19 June 2002, the defendant, Mr Moran filed an affidavit when he deposed as follows:
“I submitted a defence with my new address and herd nothing further only to discover proceeding without my knowledge with correspondence going to my old address.”
And consequently sought by his application:
“1. That the judgment be set aside and the directions hearing relisted.
2. Any other orders the Court deems fit.”
On 5 July 2002 the learned magistrate made the following order:
“Judgment set aside on the basis it was a possible defence on the merits. The plaintiff is to file and serve a bill giving sufficient particulars for taxation and is to do so within 21 days. I order that Ms J Mercer be appointed to advise the court as to the proper quantum of the account. Court listings to arrange that. I will adjourn this to await her report. Adjourned to 6 September 2002 at 9.15am. I note that the defendants address for service of documents is 150 Churchill Road Prospect. Mobile phone number 0412 746 472. Plaintiff’s costs of today reserved. Order to be posted to both parties.
A J Cannon SSM”
On 17 July 2003, Ms Mercer advised that she would be writing to both parties asking for their submissions in regard to the taxable form of bill and advised the court that she believed that she would be able to make an assessment of the costs before the rehearing of the matter on 6 September 2003. Consequently, the plaintiff had prepared by independent solicitors, a bill of costs in taxable form, which encompassed some 73 items.
Ms Mercer advised the court that she had a telephone attendance on both parties. During the short telephone attendance on Mr Moran he advised that he had not instructed Mr Weir to do the work that he had charged for as the parties had not reached a stage where an agreement could be drawn up. Ms Mercer then said:
“The total on the bill (before the inclusion f costs of drawing the bill) is $2,952.00. Of this, $1,626.00 relates to the drawing and amending of the draft agreement. The work on the bill covers of period of six working days.
In my letter to Mr Weir I requested a copy of the agreement, as first drawn and as amended, and a copy of any letter he might have sent the client in compliance with law Society Professional Conduct Rulings 9.13 - or any other document which he considered set out the terms of the retainer.
So far I have received nothing from either the client or from Mr. Weir. I rang Mr Weir on 26 August 2002 reminding him that this matter was coming on again before Dr. Cannon SSM on 6 September 2002 and that I had planned to have an assessment before His Honour when the matter came on that day. Mr Weir apologised and said he would send the documents requested in a few days. I still have not received them.
In an attempt to finalise this matter I have now contacted Mr Weir and suggested he courier his file to me so that I can proceed with the assessment. I shall advise you of the outcome.”
On 5 September 2002, Ms Mercer again wrote to the Supervising Magistrate a detailed letter. In that letter she said:
“The agreement in this matter related to the sale of an abattoir. The consideration being discussed was $1,400,000.00 and there were a number of entities involved. I consider that the matter was of sufficient importance and difficulty to warrant an additional 50 per cent on the drawing fee. I would therefore consider that the appropriate charge would be $660.00 and that $396.00 should be disallowed on item 41 of the bill.
Items 46, 54 and 55 relate to the drawing and engrossing of the amended agreement. Items 46 and 54 are charged on a time basis. I believe that the amendments to the document should be charged in the same way as the drawing of the original document. The amendments total no more than 5 pages in length and I would allow them at $33.00. The re-engrossing of the unamended sections of the agreement should be at $10.00 per page resulting in a charge of $100.00 I would therefore allow the amounts claimed at items 46 and 54 (being the equivalent of the amount due for drawing and engrossing the amendments) but would reduce the amount claimed at Item 55 by $140.00.
The matter then came on for hearing before the Senior Supervising Magistrate on 6 September 2002 when he made the following report:
“No appearance defendant. I note the report from Ms Mercer of 5 September, Mr Weir has not seen it, but I have summarised the contents to him and he does not wish to contest the report. In my finding the report is comprehensive and I accept it as being in effect a taxation figure assessing the proper charges to which the plaintiff’s is entitled. I remind myself that there was never any doubt that there was a retainer. Mr Moran did argue to Ms Mercer that the retainer didn’t cover the work to draw the agreement but clearly in my finding it did and so there being a retainer for the work done and the work now having been assessed as a faxed figure - $2416.00.
The plaintiff is entitled to a judgment. There has been no suggestion that the work was done in anything but a professional manner. Simply, there is no possible defence to this matter on any view of the facts and I according, the judgment I enter is a summary judgment, that is a final judgment for the purpose of the Magistrates Court Rules. The effect of that is and I make this order, that this note be placed promptly in the CCMS record of this order.
‘This is a final judgment no application can be taken to set aside. The defendant’s only course is to seek a review in the District Court.’ The judgment is in the sum of $2416 plus $58 filing fee, $220 solicitors fee, costs incurred on a form 18 on 11^th June $10.30, $19 and $35. Costs for attendance on 29 August, $40. Costs for attendance on 5^th July this year $40, costs of attending today, $2918.30.
I order that a copy of Ms Mercer’s report be sent to Mr. Weir and to Mr. Moran.”
The defendant, Mr Moran, then filed in this court on 5 November 2002 an application to review this decision as follows:
“1.     Particulars of the Judgment/Order complained of are as follows:
There was not a retainer offered.
The work relating to a possible contract was only discussed as we had not even negotiated any deal or heads of agreement.
2.     The grounds upon which the Review is sought are as follows:
Originally I had no knowledge the action had taken place with out me as I had shifted house.
I then applied to have judgment set aside. Immediately I had gained acceptance in full time study Regency TAFE as chef. This course does not allow for any time off or you have to make up before you can graduate with pressure of course exams and being single parent with 5 year old boy I was slow collecting my defence. Then at short notice I was sent on a Federal Trade Mission to Brunei the week I was meant to defend myself.
3.     The following Judgment/Order is sought by the Applicant:
Please I would like an opportunity to defend this action.”
This was accompanied by an affidavit sworn on 5 November 2002 where he deposed as follows:
“The reason for me being so late is I have had to study six days attending class plus after hours for theory exams plus produce an urgent document for Brunei Government in relation to large investment in Australia (Rural SA) as well as the trip to Brunei which was a Federal Trade Mission and be single dad to a five year old.
In recent times I have simply had more than I could cope with.
I would also request that the fee for application be waived through hardship. I am full time student/single parent on unemployment newstart allowance.”
On the same date there was an application for an extension of time to lodge an appeal and indeed an order was made on 26 November 2002 extending the time in which that appeal could be made. In any event, I would have made such an order.
This application came on for hearing before me on 14 January 2003 when both Mr Moran and Mr Weir appeared in person.
Mr Moran intimated to me that he denied at any time having retained the plaintiff to carry out the work that he did. He said at that time he was running an entity called Consolidated Ostrich Corporation and he had for hourly periods employed Mr Weir in that corporation in regard to certain legal work. He eventually terminated that employment.
Mr Moran admitted that at the time when he received the summons he had significant issues, which were rather traumatic, in regard to the viability of his business and was then invited on a trade mission to Brunei and regretted that he did not attend before the supervising magistrate. Despite such allegations he treated the matter with a total disinterest.
Mr Weir confirmed that he was retained by Mr Moran and did carry out work on an hourly basis for him. However, this matter relates to completely separate instructions. He claimed Mr Moran had requested him to prepare draft agreements in relation to a purchase of what I will call the Mildura abattoirs. Mr Moran admitted that he had met and discussed issues of this purchase with Mr Weir, but had not given instructions for the preparation of an agreement as it was in effect too premature for such work to be carried out by Mr Weir. He reiterated at length that he had discussed issues of this abattoir purchase, but never instructed Mr Weir to proceed and prepare a draft agreement.
On the initial hearing before me Mr Weir pointed out that he did not have all of his work files as perused by Ms Mercer. Mr Moran said that he had arrived at court on this day without his relevant file. It appeared his inattention to detail was still continuing.
I advised the parties that the only proper course for me was to set about rehearing this matter. I adjourned the same until 30 January 2003 intimating that on that day both parties should be present with all of their respective material and they could then give evidence in relation to all of the matters in dispute.
The matter was again heard on 30 January 2003 when both parties appeared before. Mr Weir gave evidence explaining the nature of his instructions from Mr Moran as well as then producing all of his file materials, which related to the work assessed by Ms Mercer.
Mr Weir has been a barrister and solicitor carrying on practice since December 1979. He initially brought this claim claiming the sum of $3,193.00. He confirmed that prior to this time he was employed by the company, Consolidated Ostrich Corporation Limited, and carried out legal work on a part time basis. That was in or about the month of August 2000. He carried out this work on an hourly rate of $50.
However, the matter in dispute was a separate arrangement. Mr Moran contacted him after he had ceased his work for the company. He said he believed he received instructions on 25 October 2000 and Mr Moran attended him at his office concerning Mr Moran’s activities in Mildura with a Mr Muller and what has been referred to as “a Muller agreement”. Mr Muller and/or representatives owned the Mildura Abattoirs. Mr Weir’s charges were in relation to the work he carried out in regard to this agreement. Mr Weir maintained that his instructions were not from Mr Moran’s trading entity, but from him personally.
Mr Weir said the summary of his work appears in the subsequent detailed bill of costs as prepared and submitted to Ms Mercer, and, he had at all times had carried out that work on instructions from Mr Moran and his charges were fair and reasonable.
Mr Moran handed to me what he called a “summary of the relevant matters” in regard to his dealings not only with Mr Weir but also initially with a Mr Lewis and with Mr Muller. It appeared that those notes confirm that Mr Moran was a personal friend of Mr Lewis who was a person with some financial management skills and had been involved in some of Mr Moran’s activities, and, also was the person who introduced Mr Weir to Mr Moran. Mr Moran confirmed that he did speak to Mr Weir about his ability to act for him in this abattoir negotiation with Mr Muller, and, simply asked him in that initial discussion to validate the legal owner of the business name or company, Mildura Abattoirs. That preliminary discussion was on 24 October 2000. However, all the detailed negotiations still had to be carried out with the Muller interests and it was then premature for any agreement to be prepared as numerous inquiries had to be made about the nature of plant, equipment and its suitability and value as well as various regulatory type enquiries in relation to export matters.
He admitted that he received a fax on 25 October 2000 and one of his employees replied to that as Mr Moran was not then in the office, but that did not change the initial instructions that Mr Moran had given Mr Weir. He agreed that he received a telephone call at Mildura from Mr Weir and he felt quite embarrassed by the nature of the enquiries carried out by Mr Weir. Subsequently, on his return, he advised him that it was too soon for Mr Weir to in any way proceed as the negotiations with Mr Muller were still continuing.
Mr Weir denied that his initial discussions were only to ascertain the entity that owned the Mildura Abattoirs.
Mr Moran said that when he returned on 31 October 2000 and found the draft agreement on his fax he was “really angry” because he viewed this work as unnecessary as his discussions were still in the investigative stage. Mr Moran said that in this period he was also dealing quite extensively with Mr Lewis who had himself prepared some very detailed heads of agreement.
Mr Moran gave evidence and outlined the nature of his preliminary discussions with the representatives of the owners of Mildura Abattoirs and confirmed his limited instructions to Mr Weir were to ascertain the entities that owned that establishment and his instructions certainly did not include a request for the preparation of any agreement. He went on to add that as the negotiations continued with Mullers’ in the following periods the solicitors for the vendor in Mildura were the people who then prepared the relevant agreement. He never at any stage wanted that agreement prepared by Mr Weir, nor did he ever request this be done. Mr Weir’s sole instruction was to ascertain the ownership of the Mildura entity.
Mr Moran commented at length of what he sees as the poor or ineffectual legal work carried out by Mr Weir.
Mr Moran then called Mr Lewis who confirmed his involvement with the nature of his advice to Mr Moran during the course of the Mildura negotiations. He confirmed that in the early period he had prepared a draft document which he at all times believed would be used by Mr Moran for the discussions with the vendors. Indeed, this was prior to the involvement of Mr Weir. He said he became involved with Mr Moran in the detailed negotiations and questions of finance. However, he was never at any time in the presence of Mr Moran and Mr Weir, but was aware of the nature of Mr Moran’s ongoing discussions with Mullers. Subsequently, he attended the Muller’s solicitors at Mildura concerning the preparation of the relevant legal documents. That was on 23 October 2000. He said he had always assumed that the vendor’s solicitors would be preparing such documents. I then asked him:
"QYou say there was little point in Mr Moran instructing Mr Weir to do the agreements.
APersonally, I don’t believe there was any instruction because he never mentioned to me, Wayne Moran, never mentioned to me, while we were driving to - we drove to Mildura together, we sat at the solicitors’ together - there was never any mention ‘My solicitor will do this’. And I assumed - I knew about the Consolidated Ostrich matter because I introduced him to do that work.
QSo, from your point of view, the agreements for this Muller deal were being prepared by the Mildura solicitors.
AAnd being for back-up for Wayne, which I didn’t know what he would do after that, but know in the coming days he asked me to attend a meeting with a Geoff Adams of Kelly and Co., to take that agreement and have things looked at. I said there was no point. I said ‘You go and do that: look at agreements; peruse them and come back with any protections for you or alterations’. I was - Wayne kept me in the loop - I was doing my own business at that stage and consequently I did sight proposed alterations by Geoff Adams of Kelly and Co. I incorporated those - I put them into a form where I then faxed them to Horvath’s.
QThis is after 31 October.
ABecause -
QThis is later.
ABecause the agreements were then prepared by Horvat Gallagher’s.
QAnd Geoff basically made some amendments on Mr Moran’s behalf.”
Mr Weir cross-examined Mr Lewis about a number of issues, but, I found the evidence of Mr Lewis quite convincing.
What is apparent from the above evidence is that there can be no doubt that Mr Moran retained Mr Weir to ascertain the legal ownership of the Mildura Abattoirs. Thereafter as to the basis of that instruction, or retainer, becomes confused. Often in the face of such conflicting evidence one is obliged to look at all the written and other evidence from other sources. The evidence of Mr Moran is rather confusing. He is a person who becomes rather excitable and garrulous. I found the evidence of Mr Lewis supportive of his contention that it would be quite illogical to request a draft agreement at that early time as clearly there was a complete absence of all relevant material as indeed is seen from the draft document prepared by Mr Weir. I am satisfied that the initial instruction was limited in nature as summarised by Mr Moran’s submissions. It would follow that being the case that the plaintiff, Mr Weir, is not able to recover the cost of the work in and about the preparation of the agreement.
I have looked at the bill in its detailed form. Mr Weir is entitled to an amount on a quantum merit basis for the proper services rendered on the basis I have outlined.
I note in the initial letter of Ms Mercer that she commented that the sum of $1,626.00 related to the drawing and amending of the agreement.
In all the circumstance I propose to award the plaintiff (Mr Weir) the sum of $1,326.00 for his costs. The plaintiff is entitled to recover all of his costs incurred before the supervising magistrate of $422.30.
Accordingly, I allow the application and I direct that judgment be entered for the plaintiff against Mr Moran for the sum of $1,326.00 plus his costs in the sum of $422.30 as outlined by the magistrate, which totals $1,748.30.
I make no order as to costs on the matter before me.

[2003] SADC 24

14 February 2003